AVON — An Avon attorney who has been suspended indefinitely can resume his practice this spring, the South Dakota Supreme Court decided this week.
Scott Swier can resume his law practice in May, the Supreme Court said in its opinion filed Wednesday. The court removed the indefinite suspension, but it added 60 days to the original end date of March 20, 2021.
Swier, a graduate of the University of South Dakota law school, formerly served as a South Dakota assistant attorney general. He left the AG’s office to purchase an Avon law firm and has since established a number of offices across South Dakota, including Sioux Falls.
On Feb. 19, 2020, the Supreme Court suspended Swier for actions that included a conflict of interest involving clients. The high court suspended him for one year and imposed conditions to meet before he could seek reinstatement.
The court amended its suspension June 14, 2020, based on a report that he emailed a legal response involving a case handled by the firm. Swier said the email response was inconsequential and did not constitute the practice of law or violate his suspension. The Supreme Court disagreed, ruling he was acting as a legal assistant without court approval. The high court imposed the indefinite suspension.
In its decision this week, the Supreme Court found grounds for him to remain a licensed lawyer and to resume his practice.
“Given the fact that Swier was suspended from the practice of law, a pattern of multiple violations would have led to his disbarment in order to protect the public,” the high court said. “Based on this single violation, which nevertheless was an intention(al) one, we extend Swier’s suspension from the practice of law for an additional 60 days following the end of his one-year suspension on March 20, 2021.”
In addition, Swier was ordered to reimburse the State Bar of South Dakota and the Unified Judicial System nearly $17,300 for the costs and expenses of his initial suspension and the current proceedings. Also, he must meet the court’s initial conditions before petitioning for reinstatement.
As part of the review process, the Supreme Court ordered the State Bar’s disciplinary board to conduct a full investigation of Swier and his law firm.
The disciplinary board reported Swier did send the email while under suspension, but it was an isolated event. In addition, the Swier Law Firm attorneys did not assist or condone any violation of the Supreme Court’s order suspending Swier from the practice of law.
As part of its investigation and report, the disciplinary board interviewed Swier Law Firm attorneys and staff. It also subpoenaed, received and reviewed Swier’s emails and Swier Law Firm’s billing records and reviewed the firm’s leases.
Brooke Swier Schloss, Scott’s law partner and sister, and Swier himself appeared before the disciplinary board separately, and the board examined them under oath.
Swier claimed he sent the email at the request of his sister, who wanted to respond quickly to an inquiry from opposing counsel but was unable to do so personally.
The effective date of Scott Swier’s initial one-year suspension was March 20, 2020. After that date, Brooke Swier Schloss became the sole partner of Swier Law Firm. Scott Swier was rarely seen at Swier Law Firm locations, but he remained employed by the law firm to assist in marketing, updating website articles and writing blog posts for the firm’s website. He also cleaned the office and did filing.
His contact with the firm’s other attorneys was limited to updating them on the status of matters and giving them background and information to assist in their representation of clients. He had no direct contact with the firm’s clients.
Swier was paid a monthly salary based upon the annualized base salary he received while practicing as an attorney. He owned the building that houses the firm, and the disciplinary board found the rent to be reasonable.
Since last June’s amended suspension, Swier has not been present at the firm’s offices. He has not done any work or received compensation for marketing or other services. He has not been present or been in communication with members of the firm regarding the activities or management of the firm.
He has reportedly been pursuing other business ventures, including a construction business in North Sioux City and an ice business in Avon, the court noted.
Based upon the investigation and findings, the Disciplinary Board recommended the South Dakota Supreme Court “take such action as it deems appropriate.”
In this week’s filing, the Supreme Court used an analogy for lawyers who don’t completely follow the rules.
“We stress that the Rules of Professional Conduct are not cafeteria-style rules,” the high court said. “An attorney is not free to pick and choose what rules to follow or disregard the rest on a whim.”
When the proceedings began, the Disciplinary Board recommended public censure for Swier. However, the Supreme Court noted a number of concerns about the firm at the time.
Swier did not have office procedures and policies to identify conflicts of interest and failed to take appropriate action to address apparent conflicts of interest, the Supreme Court said. Also, he was unaware of the responsibilities as a managing attorney, delegated decision-making and supervisory authority to employees and continued representation when he knew conflicts existed, the high court added.
In addition, the Supreme Court noted at the time its “grave concern,” as the court described it, “Swier’s lack of full candor and credibility with the board. At oral argument before this (Supreme) Court, Swier’s argument was charitably characterized as an ‘infomercial’; Swier lacked sincerity and remorse, and any attempt at either was pro forma.”
“Pro forma” is something done as a matter of form or courtesy.
The Supreme Court noted Swier’s contention that the email he sent while under suspension was inconsequential and clerical. The justices said he “has been loath(e) to accept responsibility for his actions and has done so only through ‘capitulation.’”
However, the high court noted Swier’s violation of his suspension “was an isolated incident and not a seamless continuation of the practice of law.”
As such, the high court allowed Swier’s return to practice following his compliance with certain conditions.
The Supreme Court’s full ruling can be found on the South Dakota Unified Judicial System website at ujs.sd.gov.
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